New York Real Estate Lawyers Blog

Our readers who follow politics know that members of Congress have battled in recent years with respect to revisions to the tax law. Specifically, estate, gift, and income taxes have been subject to adjustments. The purpose of this blog post is not to describe the specific changes made to these laws. The laws in this area are fluid and heavily influenced by politics, making them subject to change at almost any time. Because our readers cannot rely on consistency in the tax law, they must be mindful of their estate plans, beneficiary designations, and means by which title is held. The goal is so that intended recipients receive intended assets and that taxes are reduced as much as legally possible.

Further, while some of the tax laws have been revised at the Federal level, they have not been so adjusted in New York State. As such, estates valued at more than one million dollars are subject to New York State estate tax. In the New York metropolitan area, it is easy to accumulate one million dollars in assets, which could be deemed the value of real estate (net of the balance of a mortgage), life insurance policies that are considered to be revocable and other assets.

In any tax climate, estate planning will always be needed for the purpose of naming guardians for minor children, providing for beneficiaries with special needs such as those with physical or mental disabilities, identifying those persons desired to serve as executors and for establishing business succession plans. People with property in multiple states also require estate planning services, as different states may have their own estate tax, necessitating strategies to achieve tax reduction. In addition, same sex couples require estate planning, even if they reside in a state where they are considered legally married, to determine the allocation of assets in other states and to ensure that the spouse receives intended assets, rather than blood relatives.

This blog post contains a description of some of the standard substantive objections that a person may have to the admission of a Will to probate. Estate practitioners deem these objections the “four horsemen”. Due execution, testamentary capacity, undue influence and fraud comprise the four horsemen.

Due execution is known as the Statute of Wills. The proponent of the Will must show by the fair preponderance of the evidence that the Will was signed at its physical end in the presence of at least two disinterested witnesses. At the time of execution, the person making the Will should make it known to the witnesses that he is signing his Will and wants the witnesses to act as witnesses. Due execution is assumed if an attorney supervised the Will execution “ceremony” and if the Will contains the legal attestation clause. Our firm is mindful of New York’s execution requirements and conducts the Will signings that it supervises in accordance with the statute.

Testamentary capacity, the ability to make a Will, is broadly defined as every person over eighteen years of age who is of sound mind and memory. The Court will look to the testator’s capacity at the time that the Will was executed. Elements that the Court will consider include whether the testator understood the meaning of the Will’s provisions, the nature and extent of his property and the “natural objects of his bounty” (the identity of his family members or friends). Old age, dementia, and physical infirmaries such as blindness are not automatic disqualifiers depending upon the condition of the person when he signed his Will.

Inquiries are often made of our firm as to whether a claim can be made which may dispute the terms of another person’s Will and the proper time and legal mechanism for doing so. This post will address the issues that arise in a Will contest. As our readers may know , when a person dies with a Will, the proposed Executor must submit the original Will and other required documents to the Surrogate’s Court in the County in which the deceased resided and request that Letters Testamentary be issued appointing the person as Executor. This process is called probate.

In the probate proceeding, the Surrogate’s Court will require a signed Waiver and Consent from all distributees (those who would inherit if there was no Will) or proof of service of a Citation should these parties be unwilling to sign the Waiver and Consent. The time between the service of the Citation on an objectant and the return date of the Citation (the date scheduled by the Court to hear objections to the admission of the Will to probate or else the proposed Executor will be appointed) is the appropriate time to submit objections to the Will.

New York statute grants broad authority to file objections to the probate of a Will. Essentially, any person who would be adversely affected if the subject Will is admitted to probate may file objections. One exception to this broad rule is that good cause must be shown if the basis of the objectant’s claim is the disqualification from receiving commissions as a fiduciary.

For various reasons, not everyone dies has a Will that disposes of their property and identifies the person authorized to manage such distribution. In such a case, the surviving heirs should engage the services of an attorney to submit a Petition to the Surrogate’s Court in the County in which the deceased resided for Letters of Administration. Once duly appointed by the Court, the Administrator has similar powers to an executor for an estate. The Administrator locates, collects and distributes assets and settles claims and liabilities against the estate.

When a person dies without a Will (legally known as “intestate”), their assets will be distributed to particular classes of relatives, in the order prescribed by Estates Powers and Trusts Law Section 4-1.1 . For instance, if a person left no surviving spouse, children, or parents, his assets would be inherited by his sister. The common perception that the assets of a person dying without a Will “go to the state” is a myth when a relative in the proper class has survived the deceased. In an administration proceeding, the person who will inherit the assets is the proper person to act as petitioner and commence the proceeding. Survivors who have superior or equal rights to be appointed Administrator (such as siblings of the proposed Administrator) are to submit a Waiver, Renunciation and Consent to the appointment of the Administrator along with the Petition.

The petitioner is required to confirm that she conducted a diligent search in the deceased’s personal papers and safe deposit box, but did not find a Will. Such a diligent search should also include the Surrogate’s Court record retention files, in the event that the deceased filed her Will with the Court.